condition. Of estates upon BESIDES the several divisions of estates, in point of interest, which we have considered in the three preceding chapters, there is also another species still remaining, which is called an estate upon condition (1); being such whose existence (1) As to things executed, (a conveyance of lands, for instance), a condition, to be valid, must be created and annexed to the estate at the time that it is made, not subsequently; the condition may, indeed, be contained in a separate instrument, but then, that must be sealed and delivered at the same time with the principal deed. (Co. Litt. 236 b. Touch. 126). As to things executory, (such as rents, annuities, &c.), a grant of them may be restrained by a condition created after the execution of such grant. (Co. Litt. 237 a). Littleton (in his 328th and three following sections) says, divers words there be, which, by virtue of themselves, make estates upon condition. Not only the express words, 66 upon condition," but also the words "provided always," or "so that," will make a feoffment, or deed, conditional. And again (in his 331st section) he says, the words "if it happen" will make a condition in a deed, provided a power of entry is added. Without the reservation of such a power, the words "if it happen" will not alone, and by their own force, make a good condition. This distinction is also noticed in Sheph, Touch. 122, where it is also laid down, that although the words "proviso," "so that," and "on condition," are the most proper words to make a condition; yet they have not always that effect, but frequently serve for other purposes; sometimes they operate as a qualification or limitation, sometimes as a covenant. when inserted among the covenants in a deed, they operate as a condition, only when attended with the following circumstances: 1st. When the clause wherein they are found is a substantive one, having no dependence upon any other sentence in the deed, or rather, perhaps, not being used merely in qualification of such other sentence, And depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged (2), or finally defeated (a) (3). And (a) Co. Litt. 201. but standing by itself. 2nd. When it is compulsory upon the feoffee, donee, or lessee. 3rd. When it proceeds from the part of the feoffor, donor, or lessor, and declares his intention. (but as to this point, see Whichcote v. Fox, Cro. Jac. 398. Cromwell's case, 2 Rep. 72. and infra). 4th. When it is applied to the estate, or other subject matter. The word "provided" may operate as a condition and also a covenant: thus, if the words are, "provided always, and the feoffee doth covenant" that neither he nor his heirs shall do such an act; this, if by indenture, is both a condition and a covenant, for the words will be considered as the words of both parties. (Whichcote v. Fox, Cro. Jac. 398). But if the clause have dependence on another clause in the deed, or be the words of the feoffee to compel the feoffor to do something; then it is not a condition, but a covenant only. So, if the clause be applied to some other thing, and not to the substance of the thing granted, then it is no condition. As, if a lease be made of land, rendering rent at B., provided that if such a thing happen it shall be paid at C., this does not make the estate conditional. And a proviso that a lessor shall not distrain for rent, may be a good condition to bind him; but not a condition annexed to the estate. (See Co. Litt. 203 b. Englefield's case, Moor, 307, S. C. 7 Rep. 78. Berkeley v. The Earl of Pembroke, Moor, 707, S. C. Cro. Eliz. 306, 560. Browning v. Beeston, Plowd. 131). The word "if" frequently creates a condition, but not always; for sometimes it makes a limitation; as where a lease is made for years, if A. B. shall so long live. Conditions may be annexed to demises for years, without any of these formal words, where the intent that the estate should be conditional is apparent. (Co. Litt. 204 a, 214 b. Sheph. Touch. 123). (2) A particular estate may be limited, with a condition, that, after the happening of a certain event, the person to whom the first estate is limited shall have a larger estate. Such a condition may be good and effectual, as well in relation to things which lie in grant, as to things which lie in livery, and may be annexed as well to an estate-tail, which cannot be drowned, as to an estate for life or years, which may be merged by the access of a greater estate. But, such increase of an estate by force of such a condition, ought to have four incidents. 1. There must be a particular estate as a foundation for the increase to take effect upon; which particular estate, Lord Coke held, must not be an estate at will, nor revocable, nor contingent. 2. Such particular estate ought to continue in the lessee or grantee, until the increase happens, or at least no alteration in privity of estate must be made by alienation of the lessee or grantee; though the alienation of the lessor or grantor will not affect the condition; and the alteration of persons by descent of the reversion to the heirs of I. Estates upon condition implied in law, are where the grant has (though unexpressed) a condition an these conditional estates I have chosen to reserve till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves; seeing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. Estates, then, upon condition, thus understood, are of two sorts: 1. Estates upon condition implied: 2. Estates upon condition expressed: under which last may be included, 3. Estates held in vadio, gage, or pledge: 4. Estates by statute merchant, or statute staple: 5. Estates held by elegit. I. Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it inseparably from its essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an nexed to it, from office, generally, without adding other words; the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office (b) (4), on breach of which condition [153] *it is lawful for the grantor, or his heirs, to oust him, and grant it to another person (c). For an office, either public its nature. the grantor, or his alienee, or of the (3) It is a rule of law, that a condition, the effect of which is to defeat or determine an estate to which it is annexed, must defeat the whole of such estate; not determine it in part only, leaving it good for the residue; (Jermin v. Arscot, stated by Chief Justice Anderson, in Corbet's case, 1 Rep. 85 b. and see Ibid. 86 b. Chudleigh's case, 1 Rep. 138 b). (4) Bartlett v. Downes, 3 Barn. & Cress. 619; S C. 5 Dowl. & Ryl. 529. or private, may be forfeited by mis-user or non-user, both of which are breaches of this implied condition. 1. By misuser, or abuse; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2. By non-user, or neglect; which in public offices, that concern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture; but non-user of a private office is no cause of forfeiture, unless some special damage is proved to be occasioned thereby (d). For in the one case delay must necessarily be occasioned in the affairs of the public, which require a constant attention: but private offices not requiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief: upon which account some special loss must be proved, in order to vacate these. Franchises also, being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them; and therefore they may be lost and forfeited, like offices, either by abuse or by neglect (e). Upon the same principle proceed all the forfeitures which are given by law of life estates and others; for any acts done by the tenant himself, that are incompatible with the estate which he holds. As if tenants for life or years enfeoff a stranger in fee-simple: this is, by the common law, a forfeiture of their several estates; being a breach of the condition which the law annexes thereto, viz. that they shall not attempt to create a greater estate than they themselves are entitled to (ƒ). So, if any tenants for years, for life, or in fee, commit a felony; the king or other lord of the fee is entitled to have their tenements, because their estate is determined by the breach of the condition, "that they shall "not commit felony," which the law tacitly annexes to every feodal donation. * II. An estate on condition expressed in the grant itself, is where an estate is granted, either in fee-simple or otherwise, [ *154 ] II. Estates upon pressed are where condition ex (d) Co. Litt. 233. (e) 9 Rep. 50. (f) Co. Litt. 215. there is an ex tion annexed to the grant. with an express qualification annexed, whereby the estate press qualifica- granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition (g). These conditions are therefore either precedent, br subsequent (5). Precedent are such as must happen or (g) Co. Litt. 201. (5) Even at common law, and in the construction of a deed, no precise technical words necessarily make a stipulation precedent or subsequent: neither does it depend upon the circumstance whether the clause has a prior or a posterior place in the deed, so that it takes effect as a proviso. For, the same words have been construed to operate either as a precedent or as a subsequent condition, according to the nature of the transaction. (Hotham v. The East India Company, 1 T. R. 645. Acherley v. Vernon, Willes, 156). The dependence, or independence, of covenants or conditions, Lord Mansfield said, is to be collected from the evident sense and meaning of the parties; and however transposed they may be in a deed, their precedency must depend upon the order of time in which the intent of the transaction requires their performance. (Jones v. Barkley, 2 Dougl. 691). Such being the rule of common law, a fortiori, in courts of equity, and in the construction of wills, no technical words are held to distinguish precedent and subsequent conditions: the same words may, indifferently, constitute either; according to the intention of the person who creates the condition. (Robinson v. Comyns, Ca. temp. Talb. 165. Murray v. Jones, 2 Ves. & Bea. 320). Where a legacy is given, to which a condition subsequent, in restraint of marriage, is annexed, the condition is void and merely in terrorem; (Reynish v. Martin, 3 Atk. 332. Hicks v. Pendarvis, 2 Freem. 41); unless there be also a valid devise over of the particular legacy; or, at least, it should seem, unless the will contain an express direction that such legacy, if the condition annexed thereto be not complied with, shall sink into the residue of the testator's property. (Wheeler v. Bingham, 3 Atk. 368. Lloyd v. Branton, 3 Meriv. 118. Malcolm v. O'Callaghan, 2 Mad. 350). A mere general residuary bequest is not tantamount to a devise over of a legacy given on condition, but leaves such conditional legacy in statu quo, and can have no other effect but that of preventing what proves not to be otherwise well disposed of from falling, by order of law, to the executor or next of kin. (Scott v. Tyler, 2 Dick. 723). Whether a condition precedent, in restraint of marriage, annexed to personal legacies, can be considered as in terrorem only, where there is no express limitation over, is a point upon which great diversity of judicial opinion has been declared: where there is a valid devise over, there can now be no doubt it will take effect, if the condition be not complied with: (Clarke v. Perrier, 19 Ves. 14): and even where there is not an express devise over, the preponderance of authority seems to establish, |